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AFRICAN HUMAN RIGHTS LAW JOURNAL (2014) 14 AHRLJ 412-448 Strengthening constitutional order and upholding the rule of law in Central Africa: Reversing the descent towards symbolic constitutionalism Charles Manga Fombad* Professor of Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa Summary This article examines some of the challenges that have arisen as part of attempts during the past two decades to entrench a culture of constitutionalism and respect for law in Central Africa. It shows how, from a background of constitutions that did not promote any constitutionalism, the countries in this region generally adopted constitutions which contained most of the core elements of constitutionalism and the rule of law. It is shown that in the last few years there has been a steady slide towards what can be referred to as tokenistic and symbolic constitutionalism in the region. The objective of the article is to see how this decline could be arrested to ensure a return to substantive and effective constitutionalism. The approach adopted is essentially comparative. The contribution starts with an overview of the state of constitutionalism and the rule of law in the 11 countries located in the region. This is preceded by a brief explanation of the three critical concepts: constitution, constitutionalism and the rule of law. It then uses a number of key indicators of good governance and the rule of law to assess the governance situation in the region. This is followed by an overarching analysis of the constitutions of these countries to identify trends and tendencies and to show the nature and extent of the widening gap between the constitutional texts and actual practice. A number of measures are suggested which, it is argued, need to be taken to make constitutionalism in the region meaningful and effective. * Licence en Droit (Yaounde), LLM PhD (London); [email protected]. Paper presented at the 2nd Annual High Level Dialogue on Governance and Democracy in Africa: Trends, Challenges and Prospects, on the theme ‘Enhancing constitutional order and rule of law in Africa’ held in Dakar, Senegal, 25-27 November 2013. RULE OF LAW IN CENTRAL AFRICA 413 Key words: accountability; constitutionalism; constitutional stability; rule of law; symbolic constitutionalism 1 Introduction The last two decades have seen significant efforts to entrench constitutionalism and the rule of law in Africa. After several years of military dictatorships and authoritarian rule that triggered political instability and economic decline, African governments under internal and external pressure started from the 1990s to adopt new or revised constitutions which began to entrench democratic principles, values and practices rooted in constitutionalism and the rule of law. For the first time, African rulers and the ruling elites have come under pressure to submit themselves to the dictates of the rule of law. However, in the last few years, efforts to entrench an ethos of constitutionalism and the rule of law have come under serious threat as the forces of authoritarianism appear to have regrouped and are staging a comeback. The challenges have come in diverse forms. The article attempts to assess, using several well-established and generally- accepted indicators of good governance, how a process of constitutional transformation that started very promisingly in the 1990s, with constitutional reforms that provided some elements of formal and pragmatic constitutionalism, is now being undermined by changes that will result in nothing more than tokenistic and symbolic constitutionalism. The focus of the article is on the countries in Central Africa that have seldom been discussed in the English literature on this topic. The analysis is comparative in nature and the scope of the countries discussed as falling within the Central African region are Angola, Burundi, Cameroon, Central African Republic, Chad, Democratic Republic of the Congo (DRC), Congo, Equatorial Guinea, Gabon, Rwanda and São Tomé and Principe. On account of the number of countries covered, the article can do no more than provide a general indication of trends and emerging tendencies. The discussion that follows is divided into three parts. It starts with an overview of the state of constitutionalism in the 11 countries studied in the article. This part will be preceded by a brief explanation of the terms ‘constitution’, ‘constitutionalism’ and ‘rule of law’ as used in this context. Since the assumption is that the constitutional developments of the last two decades were designed to establish a solid basis for the promotion of constitutionalism and the rule of law, the second part of this section will review the progress that has been made. The strides made towards good governance in the region will be assessed based on a number of widely-accepted governance indicators. It is shown that since the 1990s, the Central African region has been the region that has made the least progress compared to other regions in entrenching constitutionalism and the rule of law in Africa. The next part of the article provides an overview of the actual 414 (2014) 14 AFRICAN HUMAN RIGHTS LAW JOURNAL constitutional developments that have taken place since 1990, to see whether or not this is a reflection of the conclusions suggested by the indicators of good governance and, if so, what corrective measures need to be undertaken. The last part contains concluding remarks. It is argued that the early signs of progress towards constitutional democracy in Africa, generally, and the Central African region, in particular, are now being systematically undermined by authoritarian tendencies that combine intransigence with strategic and symbolic adaptability to the modern paraphernalia of constitutionalism and respect for the rule of law. There is a need to reverse the trend in which several elements and aspects of democracy, good governance, constitutionalism and the rule of law are used merely as a cloak by leaders and their cronies to gain international respect and acceptance amongst Western donors and international institutions. 2 Overview of the state of constitutionalism and the rule of law 2.1 Some preliminary thoughts on the concepts of constitution, constitutionalism and the rule of law The credibility, viability and effectiveness of any modern constitutional order depend fundamentally on the nature of the polity’s constitution and whether this provides a solid basis for the promotion of constitutionalism and other things such as the rule of law. The terms constitution, constitutionalism and rule of law have been discussed widely in the literature. There is no need to revisit these debates beyond simply explaining the sense in which these terms are used in this context. The definitions and conceptualisations of the term ‘constitution’ are so diverse that Tushnet considers that it is one of those words which ‘are more used than defined’, but rightly adds that ‘understanding them means knowing how they are used’.1 From the variety of definitions, one can say that a constitution could be used in at least four senses: the minimalist or material sense; the formal sense; the modern sense; and the functionalist sense.2 The most frequent use refers to the document, written or unwritten, which governs, regulates and allocates powers, functions and duties amongst the different agencies within the state and between the governed and the government. The main purpose of a constitution is to limit the use of governmental powers in a manner that will prevent the twin dangers of anarchy and authoritarianism. Although the constitution is universally accepted as the best method of legitimation and 1 M Tushnet ‘Constitution’ in M Rosenfeld & A Sajó (eds) The Oxford handbook of comparative constitutional law (2012) 218. 2 See A Dyèvre ‘The constitutionalisation of the European Union: Discourse, present, future and facts’ (2005) 30 European Law Review 165-169. RULE OF LAW IN CENTRAL AFRICA 415 organisation of powers that prevents these twin evils, it is often clear that some constitutions fail to achieve this balance effectively, either in the text or in practice or even in both instances. It is therefore no surprise that scholars sometimes distinguish between certain constitutional types to reflect the extent of their effectiveness or ineffectiveness. For example, some constitutions can be described as symbolic or sham when they are not worth the paper on which they are written. They merely serve as window-dressing and are routinely ignored or arbitrarily changed and only implemented at the convenience of the government. Some normal constitutions occasionally contain sham or symbolic elements, such as directive principles of state policy, which are expressly stated not to be legally enforceable. Lowenstein has distinguished between normative, nominal and semantic constitutions based on the degree to which the political reality conforms to the norms of the constitution.3 He describes normative constitutions as effective constitutions in the sense that the political actors and the processes that they follow are within the framework of the constitution. A nominal constitution, according to him, exists where the existing socio-economic conditions prevailing in the country, regardless of the interests of the power- holders, prevent the constitutional norms from being faithfully complied with. The third category, semantic constitutions, refers to constitutions which, although reflecting

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